The Tempting of America

by Robert H. Bork

  Without agreement on the moral final state we do not know where we should be going and hence cannot agree upon the starting place for reasoning. If we have no way of judging rival premises, we have no way of arguing to moral conclusions that should be accepted by all. “In a society where there is no longer a shared conception of the community’s good as specified by the good for man, there can no longer either be any very substantial concept of what it is to contribute more or less to the achievement of that good.”3 The moral philosophers of constitutional revisionism will, for that reason, be unable to persuade all of us to accept either their premises or their conclusions. There is going to be no moral philosophy that can begin to justify courts in overriding democratic choices where the Constitution does not speak.

  The judge who takes as his guide the original understanding of the principles stated in the Constitution faces none of these difficulties. His first principles are given to him by the document, and he need only reason from these to see that those principles are vindicated in the cases brought before him. Nor is it an objection that those who ratified the Constitution may have lacked a shared systematic moral philosophy. They were elected legislators and under no obligation to justify moral and political choices by a philosophy to which all must consent.

  Some years ago I illustrated the difference between a judge and a legislator in a way that drew down a good deal of rhetorical abuse during the confirmation struggle. But being both stubborn and correct on this point, I shall employ the illustration once more and expand upon it. Given the fact that no provision of the Constitution spoke to the issue, my argument went, the Court could not reach its result in Griswold4 in a principled fashion* Given our lack of consensus on moral first principles, the reason is apparent. Every clash between a minority claiming freedom from regulation and a majority asserting its freedom to regulate requires a choice between the gratifications (or moral positions) of the two groups. When the Constitution has not spoken, the Court will be able to find no scale, other than its own value preferences, upon which to weigh the competing claims. Compare the facts in Griswold with a hypothetical suit by an electric utility company and two of its customers to void a smoke pollution ordinance as unconstitutional.

  In Griswold, a husband and wife (it was actually a pair of doctors who gave birth control information) assert that they wish to have sexual relations without fear of unwanted children. The law prohibiting the use of contraceptives impairs their sexual gratifications. The state can assert, and at one stage in the litigation did assert, that the majority of Connecticut’s citizens believes that the use of contra- ceptives is profoundly immoral. Knowledge that it is taking place and that the state makes no attempt to inhibit it causes those in the majority moral anguish and so impairs their gratifications.*

  Let us turn to the challenge to the smoke pollution ordinance. The electric utility asserts that it wishes to produce electricity at a lower cost in order to reach a wider market and produce greater income for its shareholders. The company is only the proxy for its shareholders (as the doctors in Griswold were proxies for married couples), who may be people in need of income for retirement, for college tuition for their children, and for similar reasons. The two utility customers who join in the challenge are a couple with very little income who are having difficulty keeping their home warm at high rates for electricity.

  Neither the contraceptive nor the smoke pollution law is covered specifically or by obvious implication by any provision of the Constitution. In Griswold, there is no way for a judge to say that the majority is not entitled to its moral view; he can say only that he disagrees with it, but his disagreement is not enough to make the law invalid. This is Bickel’s point about the man torturing puppies out of sight of those who are morally offended by that practice.* Knowledge that immorality is taking place can cause moral pain. The judge has no way to choose between the married couple’s gratifications (or moral positions) and the majority’s. He must, therefore, enforce the law. Similarly, there is no principled way for a judge to prefer the utility company’s shareholders’ or its two customers’ gratifications to those of the majority who prefer clean air. This law, too, must be enforced.

  We may put aside the objection, which seems to me itself dispositive, that the judge has no authority to impose upon society even a correct moral hierarchy of gratifications. I wish to make the additional point that, in today’s situation, for the reasons given by Maclntyre, there is no objectively “correct” hierarchy to which the judge can appeal. But unless there is, unless we can rank forms of gratification, the judge must let the majority have its way. There is, however, no principled way to make the necessary distinctions. Why is sexual gratification more worthy than moral gratification? Why is the gratification of low-cost electricity or higher income more worthy than the pleasure of clean air? Indeed, if the two somehow came into conflict, why is the sexual pleasure of a just-married couple nobler than a warm apartment to an indigent elderly couple? There is no way to decide these questions other than by reference to some system of moral or ethical principles about which people can and do disagree. Because we disagree, we put such issues to a vote and, where the Constitution does not speak, the majority morality prevails.

  This line of argument, which I have made before, has led some commentators to label me a moral relativist or a radical moral skeptic Nothing could be further from the truth. Like most people, I believe I have moral understanding and live and vote accordingly. I regard Connecticut’s anticontraceptive law as wrong, would vote against it, and, when I lived in New Haven, had no idea the law even existed until it was challenged, for ideological and symbolic reasons, by professors I knew. I would probably also vote for the smoke control law, feel some sympathy for the shareholders, and vote for welfare payments to the indigent couple. Other people might make different choices, and the only way to settle the questions is by a vote, not a judge’s vote but ours. This means that, where the Constitution does not apply, the judge, while in his robes, must adopt a posture of moral abstention (which is very different from personal moral relativism), but he and the rest of us need not and should not adopt such a posture when entering the voting booth. It is there that our differences about moral choices are to be decided, if not resolved, until the next election.

  No matter how tirelessly and ingeniously the theorists of constitutional revisionism labor, they will never succeed in making the results of their endeavors legitimate as constitutional law.

  13

  In Defense of Legal Reasoning: “Good Results” vs. Legitimate Process

  The most common charge leveled against the idea of interpreting each provision of the Constitution according to the understanding of the generation of Americans who ratified and endorsed it is that better results can be, and have been, produced by ignoring what was intended. Often the accusation is stronger: The actual Constitution would allow that statute to stand, which would be intolerable.

  This is the classic form of the eternal temptation: to trade the right of self-government for protection by benevolent judges. They are wiser and more humane than your fellow citizens, as shown by the fact that those citizens produced the statute which you and the judges abhor. What does legal reasoning matter if the judges know a good result when they see one?

  This style of argumentation was used by almost every senator who opposed my confirmation. Senator Kennedy advanced it again and again in outraged tones. When I had criticized a judicial decision as unjustified by the Constitution he would listen to no constitutional argument but would express moral horror that anyone could say a particular law could stand. But this form of rhetoric was followed by almost all the opposition, albeit usually in less savage terms. That fact in itself is unremarkable. Many senators have no idea that constitutional law is about anything other than results they like.

  What is more remarkable is that so much of the scholarly literature takes the same form. In article after article one reads arguments, offered as though they were dev
astating refutations, which consist of nothing more than a list of desirable decisions the principles of the historic Constitution could not have produced. The fact that this argument can be taken seriously indicates the decayed state of today’s academy. It is a demonstration that law is being seduced by politics and is thereby losing its integrity as a discipline. If it continues on this course, law will cease to be what Holmes named it, the calling for thinkers, and become merely the province of emoters and sensitives.1

  Consider the inversion of legal reasoning now in vogue. The orthodox style was to listen to a controversy between people, ascertain the facts, and then determine which side of the dispute was better supported by the relevant body of legal doctrine, whether that doctrine was expressed in judicial opinions, statutes, or the Constitution. The lawyer, judge, or professor asked what words were in the texts of these materials and what was the best interpretation of those words. The object was to frame a rule that was correct and that decided the case. A universal form of legal education and reasoning was to frame hypothetical situations to test the limits of the rule and to discover whether in such situations the rule embodied a sensible reading of the underlying text. This form of analysis makes sense only if the object is to carry the intended meaning of the legal text forward into the decision of real controversies. The rule comes out of the Constitution.

  The person who judges constitutional law by results reverses this process. He asks what decision in each case is politically or morally attractive to him, devises a rule that achieves that result, and then works backward. The rule does not come out of, but is forced into, the Constitution. There is nothing that can be called legal reasoning in this. It is a process of personal choice followed by rationalization; the major and minor premises do not lead to a result, the result produces the major and minor premises. There is, furthermore, no point in testing those premises by hypotheticals to determine what results they might produce in the future, because the future results will be chosen by personal desire and the premises will be abandoned or reshaped to fit the new desired outcome.

  We have seen precisely this process at work with the general right of privacy. In Griswold2 the Court wished to strike down a law forbidding the use of contraceptives and so fabricated a right of privacy whose rationale was the protection of the institution of marriage and “the sacred precincts of marital bedrooms.”3 A lawyer of the orthodox tradition, once he got past the impropriety of the creation of a new constitutional provision by judges, would begin to ask what other specific rights were necessary to protect the institution of marriage and the privacy of marital bedrooms. Did the inviolability of the marital bedroom protect the sexual abuse of women and children within its sacred precincts? Did these rationales protect all forms of sexuality within marriage, only those freely consented to, and so on? Did the protection of the institution of marriage require rights not directly related to sexuality, rights that would override laws about the rearing of children, about premarital agreements concerning property and other matters, about the custody of children and the division of property in the event of divorce, rights about the descent of property upon the death of a spouse?

  The lawyer would be wasting his time. The reasoning of Griswold was not meant to be taken seriously by judges, only by the general public. Eisenstadt struck down a law regulating the retail distribution of contraceptives.4 No invasion of the marital bedroom was even imaginable. And furthermore, the new right of privacy turned out to have nothing to do with protecting marriage, for the state was forbidden to place conditions on the sale of contraceptives to unmarried persons. The right of privacy now attached to the individual and enabled the individual to engage in a public transaction, a purchase. The result desired in Eisenstadt changed the rule that Griswold had placed in the Constitution. If the orthodox lawyer has not learned his lesson yet, he might start over to ask what was the scope of the amended right of privacy, “the right of the individual, married or single,” to be free from a class of laws called “unwarranted governmental intrusion” and defined only by a single example, “intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” When Roe5 was decided, we were not even told what was the rationale or the principle, simply that an operation by a physician to destroy a fetus was within the right of “privacy.” Eisenstadt and Roe made it clear that the right of privacy had nothing to do with privacy. The dissent subscribed to by four Justices in Bowers v. Hardwick viewed the right as also not restricted to the decision to bear a child but, apparently, as broad enough to encompass sexual pleasure generally. Griswold turned out not to be about the police in the bedroom but the nose of the judicial camel in the people’s tent. The premises for such decisions do not come out of the Constitution but are thrust into the Constitution and keep changing as the desired result changes. The Court employs a sort of reverse syllogism: From the result we may infer the minor and major premises. It is hardly worth the bother of drawing the inference, however, because it is valid only for today’s decision and will change with tomorrow’s.

  This results-first, premises-to-follow form of legal “reasoning” is to law what Robert Frost called free verse, “tennis with the net down.”6 There are no rules, only passions.

  Well, why not? Aren’t results more important to people than processes? Isn’t the insistence upon reasoning from the actual principles of the Constitution an arid intellectualism that ignores human yearnings? An adherence to logical systems at the expense of social justice? One answer is that the result that is “good,” though not justified by the Constitution, is not the result that the elected representatives of the people thought good. Thus, the ultimate answer is that legal reasoning is an intellectual enterprise essential to the preservation of freedom and democracy.

  When a court strikes down a statute, it always denies the freedom of the people who voted for the representatives who enacted the law. We accept that more readily when the decision is based upon a fair reading of a constitutional provision. The Constitution, after all, was designed to remove a number of subjects from democratic control, subjects ranging from the composition of the Houses of Congress to the freedoms guaranteed by the Bill of Rights. But when the Court, without warrant in the Constitution, strikes down a democratically produced statute, that act substitutes the will of a majority of nine lawyers for the will of the people. That is what is always involved when constitutional adjudication proceeds by a concern for results rather than by concern for reasoning from original understanding. That is what is approved by law professors and politicians, two groups that are not as distinct as they once were, who assess decisions by sympathy or lack of sympathy with the results. For such people, a judicial nominee’s character, professionalism, and intellectual capacity are far less important than that he follow the politically correct line.

  Legal reasoning, which is rooted in a concern for legitimate process rather than preferred results, is an instrument designed to restrict judges to their proper role in a constitutional democracy. That style of analysis marks off the line between judicial power and legislative power, which is to say that it preserves the constitutional separation of powers, which is to say that it preserves both democratic freedom and individual freedom. Yet legal reasoning must begin with a body of rules or principles or major premises that are independent of the judge’s preferences. That, as we have seen, is impossible under any philosophy of judging other than the view that the original understanding of the Constitution is the exclusive source for those exterior principles.

  The person who understands these issues and nevertheless continues to judge constitutional philosophy by sympathy with its results must, if he is candid, also admit that he is prepared to sacrifice democracy in order that his moral views may prevail. He calls for civil disobedience by judges and claims for the Supreme Court an institutionalized role as a perpetrator of limited coups d’ état. He believes in the triumph of the will. It is not clear why he does not advocate rioting or ph
ysical force, so long, of course, as the end is good as he sees the good. Such a man occupies an impossible philosophic position. What can he say of a Court that does not share his politics or his morality? What can an admirer of the Warren Court say if the Supreme Court should become dominated by conservative activists? What can he say of the Taney Court’s Dred Scott7 decision? He cannot say that the decision was the exercise of an illegitimate power because he has already conceded that power. There seems nothing he can say except that the Court is politically wrong and that he is morally justified in evading its rulings whenever he can and overthrowing it if possible in order to replace it with a body that will produce results he likes. In his view, the Court has no legitimacy as a legal institution. This being the case, the advocate of a political, value-choosing (rather than value-implementing) Court must answer another difficult question. Why should the Court, a committee of nine lawyers, be the sole agent for overriding democratic outcomes? The man who prefers results to processes has no reason to say that the Court is more legitimate than any other institution capable of wielding power. If the Court will not agree with him, why not argue his case to some other group, say the Joint Chiefs of Staff, a body with rather better means for enforcing its decisions? No answer exists.

  * The absence of any constitutional, as distinct from moral, footing for Griswold’ nullification of a statute prohibiting the use of contraceptives is discussed in Chapter 3.

  * In order to make the point, I am overlooking the fact that the law in Griswold was not enforced precisely because the majority in Connecticut did not hold the view that contraception by married couples was immoral. If one assumes, for the sake of the argument, that such a view was held, my conclusion follows.

  * † See p. 124, supra.